| | | June 16, 2014
MBMI Announces Philippine Court Decision;
Receipt of Downpayment for The Second Agreement; and Sale of Philippine Equipment
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| | Richmond Hill, Ontario, June 16, 2014 -- MBMI RESOURCES INC. ("MBMI") (TSX-V: MBR) announces that:
1. The Third Division of the Supreme Court in the Republic of the Philippines has recently issued a decision dated April 21, 2014 in G.R. No. 199580 (the "Decision").
The background of the case is as follows: On January 2, 2007, Redmont Consolidated Mines Corporation ("Redmont") filed with the Panel of Arbitrators ("POA") verified petitions against the applications for Mineral Production Sharing Agreements ("MPSAs") and Exploration Permits Applications ("EPs") of Narra Nickel Mining and Development Corporation ("Narra Nickel"), McArthur Mining Inc. ("McArthur Mining") and Tesoro Mining and Development Corporation ("Tesoro Mining"; collectively, the "Operating Companies"). Redmont asserted that the Operating Companies are supposedly not qualified to engage in mining activities because they are 100% owned by MBMI Resources, Inc., a Canadian corporation. During this time, Redmont had already applied for an exploration permit in the same area covered by the Operating Companies' MPSA applications.
On December 14, 2007, the POA rendered its Resolution where it disqualified the Operating Companies for being foreign corporations and declared null and void the MPSA granted to them. The POA gave due course to Redmont's application for exploration permit.
The Operating Companies filed their Motion for Reconsideration, which the POA denied in its February 7, 2008 Order. They then filed an appeal with the Mines Adjudication Board ("MAB") which, in turn, reversed and set aside the December 14, 2007 Order of the POA.
The MAB ruled, among others, that the POA had no jurisdiction because the issue on the nationality of a corporation and its qualification to apply for an MPSA is not among the disputes within the POA's powers, and it is the Securities and Exchange Commission ("SEC") which has the jurisdiction to determine a corporation's nationality.
Redmont's Motion for Reconsideration of the MAB Order was denied. Thus, Redmont filed an appeal with the Court of Appeals, docketed as CA-G.R. SP. No. 109703.
In its Decision dated October 1, 2010, the Court of Appeals upheld the ruling of the POA rejecting the Operating Companies' MPSA applications, and ruled as follows:
Wherefore, the Petition is PARTIALLY GRANTED. The assailed Orders, dated September 10, 2008 and July 1, 2009 of the Mining Adjudication Board are reversed and set aside. The findings of the Panel of Arbitrators of the Department of Environment and Natural Resources that respondents McArthur, Tesoro and Narra are foreign corporations is upheld and, therefore, the rejection of their applications for Mineral Production Sharing Agreement should be recommended to the Secretary of the DENR.
With respect to the applications of respondents McArthur, Tesoro and Narra for Financial or Technical Assistance Agreement (FTAA) or conversion of their MPSA applications to FTAA, the matter for its rejection or approval is left for determination by the Secretary of the DENR and the President of the Republic of the Philippines.
The Operating Companies moved for the reconsideration of the Court of Appeals' decision, pointing out that the case had already been rendered moot as a result of the execution of the Financial and Technical Assistance Agreement ("FTAA") between them and the Republic of the Philippines on April 12, 2010. (The Operating Companies converted their applications for MPSAs and EPs into an FTAA application, and the latter was granted by the Government. Moreover, under Philippine law, the Government may enter into FTAAs with wholly foreign-owned companies.)
In a Resolution dated February 15, 2011, the Court of Appeals denied the Operating Companies' motion for reconsideration.
Subsequently, the Operating Companies filed their petition for review with the Supreme Court, docketed as G.R. No. 199580, where they argued that:
(1) the POA had no jurisdiction to determine their nationalities, as such jurisdiction was vested in the SEC;
(2) they are, and have always been, Philippine nationals because 60% of their outstanding capital stock was owned by the Holding Companies (i.e., Sara Marie Mining, Inc., Patricia Louise Mining and Development Corporation, and Madrilejos Mining Corporation), which were themselves 60% Philippine-owned; and
(3) the case has become moot with the execution of the FTAA.
Subsequently, the Operating Companies manifested that their Holding Companies had become 100% Philippine-owned, with the sale of the Canadian/foreign equity (previously held by MBMI Resources, Inc.) at that level to DMCI Mining Corporation ("DMCI") in October 2012. Thus, this was a further reason to consider the nationality issue moot.
In a November 27, 2013 Resolution, the Supreme Court ordered the consolidation of SC GR. No. 205513 (the SEC case initiated by Redmont) with this case.
Subsequently, the Operating Companies filed another Manifestation dated April 4, 2014 disclosing that DMCI had also acquired MBMI's interests/equity in the Operating Companies.
In its Decision dated April 21, 2014, the Supreme Court denied the Operating Companies' petition for review on the following grounds:
(1) the case is not moot and academic;
(2) the conversion of the Operating Companies' MPSA applications to FTAA applications is suspicious, improper and not in accord with the law;
(3) applying the Grandfather Rule, the Operating Companies are foreign corporations disqualified from holding MPSA applications;
(4) the POA has jurisdiction to determine the nationalities of the Operating Companies; and
(5) the sale/transfer of MBMI's shares to DMCI is immaterial to the present case because this is not in issue and is already being tackled in the SC GR. No. 202877 (i.e., the FTAA Case).
On April 21, 2014, the Supreme Court resolved to deconsolidate this case and the SEC Case considering that both cases involve different causes of action.
The Operating Companies filed their Motion for Reconsideration on June 5, 2014 seeking the reversal of the Decision. Their grounds for reconsideration are:
(1) The Decision casts all sorts of aspersions on the Operating Companies and accuses them of bad faith/ill motives. However, those aspersions and accusations are all legally and factually baseless. They cannot overcome the fundamental presumption of good faith in the Operating Companies' favor.
A. The Operating Companies' actions (e.g., the conversion of their MPSA applications to an FTAA application) and corporate structures are regular, valid, and expressly allowed by law.
B. The Decision readily but baselessly accuses the Operating Companies of bad faith, but is itself unfair to them.
Moreover, the Decision inexplicably does not even castigate or censure Redmont for its blatant, willful, and deliberate forum shopping. The Decision erred when it did not dismiss Redmont's cases precisely due to its forum shopping.
(2) The Decision's insistence on the Grandfather Rule is erroneous and unjustified.
A. The Grandfather Rule has no basis or support in the Constitution. The Constitution only requires that a corporation engaged in a nationalized and/or partially nationalized activity be at least 60% Philippine-owned.
B. The Grandfather Rule has no statutory basis or support. The Foreign Investments Act (Republic Act No. 7042, as amended) and the Mining Act also only require the corporation engaged in a nationalized and/or partially nationalized activity to be at least 60% Philippine-owned.
C. The 1967 SEC Rule cited in the Assailed Decision expressly states that the Grandfather Rule will only apply if the percentage of Philippine ownership in the corporation is less than 60% (which was not the case here).
The Decision's insistence on the Grandfather Rule and espousal of nebulous, undefined grounds for its application can only lead to uncertainty and erosion of investor confidence.
(3) The Decision erred in stretching the application of Rule 130, Section 29 of the Rules of Court (the res inter alios acta rule) to joint venturers.
(4) The POA has no jurisdiction over the issue of the Operating Companies' nationalities. The Decision erred in ruling otherwise.
2. MBMI received the Downpayment under the Second Agreement with its Philippine Partner
As disclosed in the press release dated March 24, 2014, MBMI has agreed to transfer all of its interest in the DevCos to DMCI. MBMI is pleased to announce that it has received the Downpayment of $750,000.00 from DMCI pursuant to the Agreement signed by MBMI and DMCI for the transfer of the DevCo Shares. (For further information regarding that transaction, please see the Company's press release of March 24, 2014.)
3. MBMI Philippines sells heavy equipment in Philippines
On May 12, 2014, MBMI's affiliate in the Philippines, MBMI Resources Philippines ("MBMI Philippines"), entered into a Deed of Absolute Sale with Ivy Michelle Trading and Construction for the sale of thirteen (13) units of heavy equipment. The consideration of Nine Million Two Hundred Thousand Pesos (₱9,200,000.00) for the sale has been received in full by MBMI Philippines.
Contacts:
For further information relating to MBMI or this release, please refer to MBMI's website at www.mbmiresources.com or contact Joseph Chan, President and CEO by telephone at 647-299-9203 or by email at mbmi@mail.com.
Cautionary Statement:
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release. No stock exchange, securities commission or other regulatory authority has approved or disapproved the information contained herein.
The foregoing information may contain forward-looking statements relating to the future performance of MBMI Resources Inc. Forward-looking statements, specifically those concerning future performance, are subject to certain risks and uncertainties, and actual results may differ materially from MBMI's plans and expectations. These plans, expectations, risks and uncertainties are detailed herein and from time to time in the filings made by MBMI with the TSX Venture Exchange and securities regulators. MBMI Resources Inc. does not assume any obligation to update or revise its forward-looking statements, whether as a result of new information, future events or otherwise.
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